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09/23/94 PEOPLE STATE ILLINOIS v. CLIFFORD ANDERSON

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION


September 23, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
CLIFFORD ANDERSON, DEFENDANT-APPELLEE.

Appeal from the Circuit Court of Cook County. No. 86CR16841. Honorable Michael P. Toomin, Judge Presiding

As Corrected October 17, 1994. Petition for Leave to Appeal Denied February 1, 1995.

Gordon, McNULTY, Cousins

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

Defendant, Clifford Anderson, was charged by indictment with various counts of murder and armed violence. *fn1 At the Conclusion of a jury trial, the Defendant was found guilty of two counts of murder and two counts of armed violence for the murders of Robert Williams and Mack Sutton and was sentenced to natural life.

On appeal the Defendant raises several issues. They are: (1) whether he was denied due process because several jury instructions were denied, improperly given over his objection, or not given sua sponte by the trial court; (2) whether he was denied due process and effective assistance of counsel when his defense counsel refused to abide by Defendant's decision not to present an insanity defense; (3) whether the prosecution erroneously presented a previously undisclosed admission of the Defendant; (4) whether the Defendant was denied the right of confrontation; 5) whether the trial court erroneously denied Defendant a fitness hearing; (6) whether the Defendant was improperly prevented from presenting relevant testimony; (7) whether the jury selection was improper; (8) whether improper and prejudicial prosecutorial acts occurred at trial; and (9) whether during closing argument defense counsel improperly was prevented from disclosing the consequences of a finding of not guilty by reason of insanity. *fn2

[The following material, labeled "Background," is nonpublishable under Supreme Court Rule 23.]

BACKGROUND

At trial, the State presented the testimony of various witnesses. The testimony relevant to the issues raised in this appeal is as follows.

Michael Dudley testified that, on September 5, 1978, he was in his second floor apartment at 300 West North Avenue, when at approximately 11:00 a.m., he looked out of his window and saw Mack Sutton, the engineer of the building, standing on a concrete block in the back of the building. He also saw the Defendant, who was the janitor of the building, walking towards Sutton holding a small revolver. Dudley stated that the Defendant shot Sutton from a distance of approximately one or two feet; and, at the time of the shooting, Sutton was looking out towards the playground and was not holding anything in his hands. After the Defendant shot Sutton, he walked toward the building and looked at Dudley who was standing at his window just a few feet from where the Defendant was walking.

Dudley further testified that he then took the elevator downstairs to get his children away from the playground; and, as he reached the first floor, he heard a shot. He remained in the elevator for a few seconds; and, as he exited, he saw the Defendant in the hallway. After Dudley returned to his apartment with his children, he saw a taxicab driver walking towards Sutton's body. He also saw the Defendant exit the building and heard the Defendant tell the cab driver to get away from Sutton. The cab driver returned to his cab and drove away. The Defendant re-entered the building. Dudley went back to the lobby and saw the Defendant leave the building carrying a paper bag. The police immediately arrived and arrested the Defendant.

Joann Colliflower testified that she was being trained by Robert Williams, the second victim, to become manager of the building located at 300 West North Avenue. During her month-long training, she would see the Defendant performing janitorial duties; and she had a conversation with him when he changed the light bulb in her apartment. She said the Defendant was responsive and that there was nothing abnormal about his appearance or demeanor.

Colliflower stated that, on September 5, 1978, at approximately 11:00 a.m., she and Williams were in the first floor office. Williams was completing a telephone conversation when the Defendant approached the door and called "Bob." Williams looked up at the Defendant who was standing in the doorway holding a gun. The Defendant then shot Williams in the head and left the office. As Colliflower grabbed a cushion from a chair, the Defendant walked back into the office holding his arm out with the gun in his hand. The witness heard the gun click and pleaded with the Defendant not to shoot her. The Defendant then dropped his arm, turned around and walked out of the office.

James Tucker, a Chicago police officer at the time of trial, testified that on September 5, 1978, the date of the shootings, he was working as a taxicab driver. Between the hours of 11:00 a.m. and 12:00 p.m., he was driving north on North Park near North Avenue when he saw a man laying on the ground near the rear of the building. He stopped his taxicab and went to assist the man. As he leaned over the body, the Defendant approached holding a small automatic revolver in his hand. The Defendant told Tucker to leave. Tucker returned to his cab and drove in the direction of North Avenue where he found an unmarked police car and uniformed police officers.

Tucker further testified that, as he was getting into the police car, he saw the Defendant come out of the front of the building carrying a brown paper bag which the Defendant dropped on the ground after the officers ordered Defendant to come to their car. The Defendant told the officers that a gun was in the bag and that "I shot both of them." The officers checked the paper bag and it contained the same gun that Defendant previously had pointed at Tucker.

During cross-examination of Tucker, the trial court sustained the State's objection to defense counsel's line of questioning regarding the reason Tucker was no longer employed as a taxicab driver.

Kenneth Riess, a Chicago police officer, corroborated Tucker's testimony. He stated that the Defendant dropped the brown paper bag he was carrying after he was told to do so by the officers. He indicated that the Defendant stated "I shot 'em. I shot 'em both dead," as they handcuffed him. Riess further testified that they accompanied the Defendant to the rear of the building where they found Sutton on the pavement unresponsive and bleeding from the mouth. The Defendant told them that there was another man inside the building. They entered the building and attempted to open the office door but it was locked. After they identified themselves, the woman inside, Joann Colliflower, opened the door. Williams was behind a desk in the office, motionless and bleeding from the head.

Riess stated that during the time he spoke to the Defendant, the Defendant did not appear to be under the influence of drugs or alcohol; he did not have a glazed look; he did not appear to be acting abnormal and he spoke in a coherent manner. In Officer Riess' opinion, the Defendant was acting normal on September 5, 1978.

Chicago police sergeant Charles Stella testified that, on September 2, 1978, he and his partner answered a disturbance call at 300 West North Avenue. Upon entering the manager's office, the officer saw Williams and the Defendant. Williams stated that he had fired the Defendant; and the Defendant said, "You can't fire me." The Defendant left the office after he was told to do so by Officer Stella. Stella testified that, although the Defendant appeared upset, he seemed normal. *fn3

After the State rested its case, Doctor Jerome Katz, a forensic psychiatrist, testified against the Defendant's wishes. He stated that he had examined the Defendant in September of 1981 at the request of Defendant's defense attorney. Based upon a two-hour examination of the Defendant, a review of the Defendant's records from the Psychiatric Institute, and an EEG test, Doctor Katz concluded that the Defendant was suffering from paranoia. He based this Conclusion on the Defendant's belief that the 300 West North Avenue building was being converted into condominiums, that people were being evicted and that he was the only one who could save the tenants and the building. The Defendant also was very suspicious and felt that people were "out to get him, harm him, kill him, cheat him." The Defendant falsely believed he had a warm, loving, close-knit family; when, in fact, his mother ran away from home and died in a mental hospital; and his brother and uncle allegedly were in state mental hospitals.

Doctor Katz opined that, based on a diagnosis of paranoia and a passive/aggressive personality disorder, the Defendant could not conform his conduct to those of society on September 5, 1978 and that, on that date, the Defendant was not sane.

During cross-examination, Doctor Katz admitted that the three-year time span from the time of the killings until the date of his examination of the Defendant would make it difficult to reach an opinion of sanity. He admitted that he did not speak to any of the eyewitnesses to the killings or to the investigating police officers and that he did not perform any psychological testing on the Defendant. Doctor Katz further admitted that he was the only doctor to find the Defendant insane on September 5, 1978; and that, every time he testifies in court, his finding is that the defendant is insane or unfit to stand trial. Doctor Katz stated that the only time the Defendant could not conform his conduct to the requirements of the law was when he pulled the trigger of the gun, which was an act of venting his anger.

Douglas Longhini testified that on September 5, 1978, while he was employed by WLS-TV as a researcher for "Target 7," he received a telephone call from the Defendant who told him that there were problems at an FHA subsidized apartment building. The Defendant was angry with the managers because of alleged corruption. On cross-examination, Longhini stated that the Defendant had not told him that he had been fired from his position at the building. He also indicated that the Defendant spoke in coherent sentences during their conversation.

Woodward Jordan, president of the board of directors for the building cooperative at 300 West North Avenue, testified that the management company for that building could only fire people "through the board."

Ora Russell, a tenant at the 300 West North Avenue building and Defendant's roommate since 1977, testified that on September 5, 1978, at approximately 6:00 a.m., the Defendant came to Russell's room and was upset. He believed the Defendant had been fired by the manager of the building. Pursuant to Defendant's request, Russell made several telephone calls, including calls to the Defendant's union and to WLS-TV. The Defendant did not talk on the telephone, except during the call to his union, because he as too upset. On cross-examination, Russell admitted that, apparently after the union returned his call, the Defendant slammed the telephone down, went into the bedroom and picked up the gun previously identified as the gun recovered at the scene of the killings. Russell stated that, before leaving the apartment, the Defendant said "he was going to kill them." Russell heard gun shots a few minutes later.

The Defendant testified on his own behalf. He stated that Sutton and Williams had sabotaged the boilers, causing the fuel bill for the building to be exorbitant, and that they were trying to raise the rents of various tenants and to "extract" others. The Defendant stated that he was asked to sit in on the board of directors meetings for the building cooperative and that after a board meeting on September 4, 1978, Sutton, Williams and the then-president of the board (Jordan had retired) told him that he was "messing up everything;" that the building was going to become a condominium; and that they were being offered $25,000 each to disrupt the building by raising rents and forcing out tenants. The Defendant testified that he was given the same offer but that he refused. He stated that he went back to work and subsequently Williams and Sutton called him to the office. During a conversation with them, Williams grabbed the Defendant, slammed him against the wall, choked him, kicked him in the ribs, shouted obscenities, and told him they were going to kill him. The Defendant then went to his apartment and told Russell that he was having trouble with Sutton "and them" and that he had been fired. (1059-62)

The Defendant further testified that the next morning he and Russell made five or six telephone calls, including a call to Mr. Longhini, and wrote letters but that no one would help him. He then went downstairs and found Williams and Sutton in the lobby. Williams began a Discussion about bribe money, offering the Defendant $50,000; and Sutton shoved the Defendant, and the Defendant shoved him back. He stated that Sutton then went out the door and Williams went to his office. The Defendant also stated that, while he was standing in the driveway, Williams and Sutton stood on the loading dock and told Defendant they were going to kill him.

The Defendant stated that, about an hour later, while he was working, Sutton came through the door with a bag in his hand. After Sutton pulled a gun out of the bag, he and the Defendant "tussled" over the gun and the gun went off three times. Sutton fell to the ground, and the Defendant proceeded to walk toward the elevator with the gun in his hand. He did not realize he was carrying the gun. When he reached the lobby, the Defendant began yelling at two men who were smoking marijuana. One of the men shoved the Defendant, causing him to stagger, and the gun went off accidentally. Then, a Mrs. Point ran screaming out of Williams' office. The Defendant turned and saw that Williams was slumped over his desk.

The Defendant admitted that he aimed the gun at Ms. Colliflower as a reflex when she went to grab for a pillow, but that he put the gun down, turned around and left the office. The Defendant stated that he returned to where Sutton was laying and told a taxicab driver who was near Sutton not to touch him. He said he then went back to his apartment, washed his face, told Russell there had been a shooting, went back down the elevator, walked out the front door down the sidewalk and heard someone calling him. He then dropped the brown bag and was arrested.

On cross-examination, the Defendant admitted that Williams and Sutton tried to fire him a few days prior to the shootings and that he probably did tell Ora Russell that he was going to kill Williams because he was very angry after they beat him up. Defendant denied he carried a gun outside his apartment in order to kill Williams. He stated that he picked up the gun after Sutton had been shot because he had Williams on his mind and because he was afraid of Williams. He maintained that Williams was shot in the head by accident when the gun went off as the Defendant struggled in the lobby with a man smoking marijuana. He denied knowing that Williams' last day as manager of the building was September 5, 1978; and admitted that "more than likely" he pointed the gun at the cab driver but knew that it would have been against the law had he fired the gun at the cabdriver. He also denied that he told the police officer that he had just shot Williams and Sutton.

The State, in rebuttal, called Doctor Gerson Kaplan as a witness. Doctor Kaplan testified that on May 21, 1979 he conducted an examination of Defendant to determine Defendant's mental state at the time of the shootings. After reviewing various reports and performing certain psychological tests on Defendant, Doctor Kaplan determined that the Defendant had a passive/aggressive personality with anti-social features but that on the day of the shootings Defendant was able to appreciate the criminality of his conduct and could conform his conduct to the requirements of the law. The Defendant had a non-organic personality disorder which gave him difficulty in dealing with anger and did not allow him to show remorse for inappropriate or wrongful behavior. This personality disorder was not the product of a mental disease or defect.

Doctor Kaplan further testified that he examined the Defendant in February of 1981 and concluded that the Defendant continued to have a passive/aggressive anti-social personality but with additional paranoid features. Defendant continued to be easily angered and did not trust people.

At the Conclusion of the trial, the jury found the Defendant guilty of two counts of murder and two counts of armed violence with respect to the deaths of Williams and Sutton. The Defendant appeals these convictions.

[The preceding material, labeled "Background," is nonpublishable under Supreme Court Rule 23.]

I.

The Defendant's first argument on appeal is that he was denied due process because several jury instructions were denied, improperly given over Defendant's objection or not given sua sponte by the trial court. Initially, the Defendant contends that the trial court committed error with respect to his conviction of the murder of Sutton when it refused to give a voluntary manslaughter instruction and to amend the murder instruction accordingly.

The Defendant argues that a voluntary manslaughter instruction should have been given with respect to Sutton's death because the evidence presented at trial could support a jury finding that he either acted in the unreasonable belief of justification or acted under a sudden and intense passion caused by adequate provocation (Ill. Rev. Stat. 1977, ch. 38, par. 9-2; cf. 720 ILCS 5/9-2 (West 1992) (voluntary manslaughter replaced by second degree murder)). The evidence, solely based upon his own testimony, was that he was attacked by Sutton, that Sutton pulled a gun on him and that a struggle ensued during which the gun discharged killing Sutton.

In support of his argument, the Defendant relies on People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378, 45 Ill. Dec. 900, for the proposition that, whenever a self-defense instruction is given in a murder case, a voluntary manslaughter instruction also is required. We do not believe that Lockett is so encompassing. Rather, Lockett held that self-defense and voluntary manslaughter instructions should be given when any evidence is presented showing the defendant's subjective belief that deadly use of force was necessary. A question must exist, however, as to whether that subjective belief is reasonable, resulting in a verdict of not guilty, or unreasonable, resulting in a verdict of voluntary manslaughter.

We believe the holding in Lockett is inapplicable to the facts in the instant case. In Lockett, the defendant's subjective belief clearly was in question; and the jury had to decide whether the defendant could reasonably believe that the concealed object the victim picked up before the defendant shot him was a gun, when it was actually an empty whiskey bottle. The court held that the evidence presented the possibility that the defendant had a subjective belief he was acting in self-defense and that it was for the jury to decide whether that subjective belief was reasonable or unreasonable. In the instant case, the reasonableness of the Defendant's subjective belief was not in question. As the trial court stated, there was no evidence of an unreasonable subjective belief; rather, the evidence elicited from the Defendant's testimony, was that Sutton pointed a gun at the Defendant, that a struggle ensued, and that the gun went off fatally injuring Sutton. The question for the jury to decide was whether the factual scenario alleged by the Defendant occurred. If the jury believed it did, and that Sutton instigated the altercation and threatened the Defendant by pointing the gun at him, then the jury could conclude that the Defendant could reasonably believe that the use of deadly force was necessary to prevent imminent death or great bodily harm to himself (Ill. Rev. Stat. 1977, ch. 38, par. 7-1 now codified at 720 ILCS 5/7-1 (West 1992)). If the jury disbelieved the Defendant's testimony and believed the testimony of the other witnesses, then there was no physical altercation between Sutton and the Defendant and, instead, the Defendant was the aggressor; had possession of the gun; walked over to Sutton; and shot him. Under this latter factual scenario, the Defendant would be guilty of murder. In either case, there can be no question of an unreasonable belief by the Defendant; and, therefore, the Defendant was not entitled to a voluntary manslaughter instruction under section 9-2(b) of the Criminal Code of 1961 nor was the Defendant entitled to a murder instruction placing upon the State the burden of disproving beyond a reasonable doubt the existence of an unreasonable belief of justification (see People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, 122 Ill. Dec. 1).

Even assuming arguendo that an error occurred in instructing the jury on mitigating mental conditions, this error would not warrant a new trial since the result of the trial would not have been different had the arguably correct instructions been given. ( People v. Fierer (1988), 124 Ill. 2d 176, 529 N.E.2d 972, 124 Ill. Dec. 855.) In People v. Moleterno (1990), 199 Ill. App. 3d 15, 556 N.E.2d 703, 145 Ill. Dec. 85, the defendant's murder conviction was affirmed despite the fact that the jury received the identical murder and voluntary manslaughter instructions found to be erroneous in People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, 122 Ill. Dec. 1. In Moleterno, the defendant and victim had been involved in an altercation while driving their automobiles. The defendant's testimony was the only evidence pertaining to his perceptions or subjective belief in the need to use deadly force. The court held that his testimony was contradicted and impeached by other direct and circumstantial evidence; that his lack of belief in the need to use deadly force was so clear and convincing; that the trial result would not have been different had the arguably correct instructions been given; and that, therefore, the error, if any, was harmless beyond a reasonable doubt. (See also People v. Beauford (1991), 249 Ill. App. 3d 943, 621 N.E.2d 1, 190 Ill. Dec. 132.) We believe that the same Conclusions can be reached here and that, therefore, the error, if any, is harmless beyond a reasonable doubt.

For similar reasons we affirm the trial court's denial of a voluntary manslaughter instruction pursuant to section 9-2(a) of the Criminal Code of 1961 and the corresponding murder instruction required by People v. Reddick. There was no evidence in the record from which the jury could find the Defendant was acting under a sudden, intense passion resulting from provocation when Sutton was shot. As the trial Judge stated, the acts related by the Defendant leading up to the shooting of Sutton were not sufficient acts of provocation which would engender passion or a killing in the heat of passion. The Defendant's testimony supported a theory of self-defense and a desire to protect himself. See People v. Handley (1972), 51 Ill. 2d 229, 282 N.E.2d 131; People v. De Rosa (1941), 378 Ill. 557, 39 N.E.2d 1 (self-defense instruction given, voluntary manslaughter instruction refused).

The Defendant next contends that the trial court committed error when it refused to amend the armed violence instruction to include language that the State must disprove beyond a reasonable doubt that the Defendant was not justified in using the force he used against Sutton. At trial, the jury was presented with the issues instruction for armed violence, IPI Crim. No. 11.20. Unlike the tendered murder instruction, this instruction did not contain language placing the burden on the State to prove beyond a reasonable doubt the additional element that the Defendant was not justified in using the force he used. The jury also was given a definitional instruction covering the justifiable use of force in self-defense (IPI Crim. No. 24-25.06 (2d. 1981) formerly IPI Crim. No. 24.06 (1968)) along with an instruction informing the jury that the burden of proof remained with the State (I.P.I. Criminal No. 2.03).

In People v. Wells (1982), 110 Ill. App. 3d 700, 442 N.E.2d 1341, 66 Ill. Dec. 428, a case cited by the Defendant, the identical jury instructions for murder, aggravated battery and self-defense were given. An additional instruction for involuntary manslaughter was given. The court found that the conspicuous absence of the self-defense language from the aggravated battery and involuntary instructions, while present in the murder instruction, could lead a diligent jury to conclude that, although absence of justification was required to prove murder, it was not required to prove armed violence or involuntary manslaughter. The court concluded that the defendant may well have been convicted of involuntary manslaughter and aggravated battery because the issues instructions omitted any reference to self-defense. The case was reversed and remanded for a new trial because the court found the case was factually close.

While we agree with Wells and find that the aggravated battery instruction was erroneous in that it did not contain any reference to self-defense and the State's burden to prove beyond a reasonable doubt that the Defendant was not justified in the use of force he used, we do not believe a reversal and remand are required. In the instant case, unlike in Wells, the jury convicted the Defendant of murder and, in order to do so, had to find that the State proved beyond a reasonable doubt that the Defendant's use of force was not justified. Also, the facts in the instant case are not factually close. The evidence against the Defendant was overwhelming and included the testimony of two eyewitnesses. The only evidence in support of the Defendant' theory of self-defense was his own testimony. See People v. Beauford (1991), 249 Ill. App. 3d 943, 621 N.E.2d 1, 190 Ill. Dec. 132.

The Defendant next argues that the trial court erred when it refused Defendant's non-I.P.I. Criminal instruction which would have advised the jury on the consequences of a verdict of not guilty by reason of insanity. Illinois courts have held that, generally, a jury should not be told of the consequences of a verdict of not guilty by reason of insanity because it would inject extraneous and irrelevant matters into the jury's deliberations which have no bearing on the defendant's guilt (e.g., People v. Parker (1983), 113 Ill. App. 3d 321, 447 N.E.2d 457, 69 Ill. Dec. 240; People v. Meeker (1980), 86 Ill. App. 3d 162, 407 N.E.2d 1058, 41 Ill. Dec. 560). As stated in People v. Meeker:

"The jury's verdict should not be influenced by its possible consequences. [Citation.] Such an instruction invites the jury to reach a compromise verdict, * * * It does not appear that requiring such an instruction in all cases involving an insanity defense, or even in close cases, could help the jury reach a true and correct verdict." 86 Ill. App. 3d at 170, 407 N.E.2d at 1065.

In accordance with People v. Meeker, the trial court in the instant case properly denied Defendant's instruction regarding the consequences of a verdict of not guilty by reason of insanity.

Defendant's fourth alleged instruction error concerns the trial court's failure to sua sponte instruct the jury on the issue of involuntary manslaughter with respect to the shooting of the second victim, Williams.

Generally, a trial court is under no duty to give instructions which are not requested by either party (e.g., People v. Hall (1983), 117 Ill. App. 3d 788, 453 N.E.2d 1327, 73 Ill. Dec. 192); and it is the burden of the party who desires a specific instruction to present it to the court and request that it be given to the jury (e.g., People v. Quick (1992), 236 Ill. App. 3d 446, 603 N.E.2d 53, 177 Ill. Dec. 272). The failure to request an instruction normally constitutes a waiver. ( People v. Sanders (1984), 127 Ill. App. 3d 471, 469 N.E.2d 287, 82 Ill. Dec. 753.) Under the plain error exception, however, substantial defects cannot be waived; and the party seeking to avoid waiver has the burden of establishing that the defect was substantial and the error resulted in denial of a fair trial. (See People v. Hall (1983), 117 Ill. App. 3d 788, 453 N.E.2d 1327, 73 Ill. Dec. 192.) This exception should only be invoked when the evidence is so closely balanced that the verdict of the jury may have resulted from the error. People v. Sanders.

In the instant case, we find that the Defendant waived any error with regard to the giving of an involuntary manslaughter instruction because none was tendered at trial. We also find that an involuntary manslaughter instruction was not required by the evidence. In order for an involuntary manslaughter instruction to be given, evidence must be adduced at trial that a human being was killed by actions which "are likely to cause death or great bodily harm * * * and [are] performed recklessly" (Ill. Rev. Stat. 1977, ch. 38, par. 9-3(a); now codified at 720 ILCS 5/9-3(a) (West 1993 Supp.)). There was no evidence at trial to support a finding of recklessness; rather, the Defendant testified that he accidentally shot Williams when, while carrying the gun, he was pushed by a third individual. See People v. Moore (1980), 89 Ill. App. 3d 202, 411 N.E.2d 579, 44 Ill. Dec. 457 (defendant's theories of self-defense, accident and insanity belie recklessness).

Even if an involuntary manslaughter instruction should have been given, we also find that the error was not plain error because the evidence was not closely balanced. As stated above, the Defendant's testimony was the only evidence pertaining to the issue, and it was contradicted by other direct and circumstantial evidence which the jury believed to be more credible having found the Defendant guilty of murder. See People v. Moleterno (1990), 199 Ill. App. 3d 15, 556 N.E.2d 703, 145 Ill. Dec. 85.

Next, the Defendant contends that error was committed when the trial court refused to amend the murder instruction with nonpattern jury instruction language that the jury should consider any evidence offered in Defendant's insanity defense to determine whether the State proved Defendant's mens rea for the murder charges and whether the State proved that the Defendant had committed voluntary manslaughter having had an unreasonable belief of justification. Generally, approved pattern jury instructions are to be used; and they may be modified or supplemented only when the facts of the particular case warrant it. The decision of whether to give a tendered non-pattern jury instruction is discretionary with the trial court. People v. Mitchell (1984), 129 Ill. App. 3d 189, 472 N.E.2d 114, 84 Ill. Dec. 364.

In the instant case, the trial court rejected Defendant's non-pattern jury instructions. In People v. McDarrah (1988), 175 Ill. App. 3d 284, 529 N.E.2d 808, 124 Ill. Dec. 827, the court rejected a similar non-pattern jury instruction tendered by the defendant. The appellate court affirmed stating the tendered instruction was unnecessary where there was nothing in the approved instructions to preclude the jury from using defendant's evidence to find that the State had failed to prove the mens rea. (See also People v. Clemons (1989), 179 Ill. App. 3d 667, 534 N.E.2d 676, 128 Ill. Dec. 494.) In accordance with McDarrah, we cannot say that the trial court's decision in the instant case was an abuse of discretion. We also cannot not say that the denial of the non-pattern jury instruction was erroneous with respect to the Defendant's voluntary manslaughter argument since, for the reasons stated above, there was no evidence at trial to support the giving of a voluntary manslaughter instruction to the jury.

The Defendant's final contention with respect to his first issue on appeal involves the failure of the court to sua sponte include language in the self-defense instruction (IPI Crim. No. 24-25.06 (2d ed. 1981) advising the jury that deadly force may be used to prevent the commission of a forcible felony. The Defendant argues that this language was necessary because his testimony stated that Sutton had committed an aggravated battery upon him on the public way (Ill. Rev. Stat. 1977, ch. 38, par. 12-4(b)(8), now codified at 720 ILCS 5/12-4 (b)(8) (West 1993 Supp.).

We find that the Defendant waived this argument because he failed to request or tender such an instruction. (E.g., People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) We also find that the error, if any, was not plain error and was capable of being waived since it was not grave and since the evidence was not close factually. People v. Berry (1984), 99 Ill. 2d 499, 460 N.E.2d 742.

II.

The Defendant's second argument on appeal is that he was denied due process and effective assistance of counsel when his defense counsel refused to abide by Defendant's decision not to present an insanity defense.

It is well settled that an attorney must take professional responsibility for the conduct of the case after consulting with his client. ( Jones v. Barnes (1983), 463 U.S. 745, 753-54 n.6, 77 L. Ed. 2d 987, 994-95 n.6, 103 S. Ct. 3308, 3313-14 n.6; People v. Johnson (1991), 220 Ill. App. 3d 550, 581 N.E.2d 118, 163 Ill. Dec. 167.) While the attorney is considered to be the "'manager' of the case" ( Johnson, 220 Ill. App. 3d at 558, 581 N.E.2d at 124 quoting People v. Wilkerson (1983), 123 Ill. App. 3d 527, 532, 463 N.E.2d 139, at 144, 79 Ill. Dec. 1), there are certain ultimate decisions, involving fundamental rights, that can only be made by the defendant regardless of competent counsel's advice to the contrary (Johnson; People v. Knox (1978), 58 Ill. App. 3d 761, 374 N.E.2d 957, 16 Ill. Dec. 182). These fundamental rights are limited to: what plea to enter; whether to waive a jury trial; whether to testify on one's behalf; and whether to appeal. People v. Ramey (1992), 152 Ill. 2d 41, 604 N.E.2d 275, 178 Ill. Dec. 19; see also People v. Novotny (1968), 41 Ill. 2d 401, 244 N.E.2d 182 (jury waiver); People v. Whitfield (1968), 40 Ill. 2d 308, 239 N.E.2d 850 (right to plead guilty); People v. Sifford (1993), 247 Ill. App. 3d 562, 617 N.E.2d 499, 187 Ill. Dec. 291 (waiver of statute of limitations); People v. Loera (1993), 250 Ill. App. 3d 31, 619 N.E.2d 1300, 189 Ill. Dec. 251 and People v. Henne (1988), 165 Ill. App. 3d 315, 518 N.E.2d 1276, 116 Ill. Dec. 296 and People v. Knox (right to testify).

When a fundamental right is not at stake, and the decision relates to a matter of trial strategy or tactics, trial counsel, after consulting with his client, has the right to make the ultimate decision. (People v. Ramey.) Matters of trial strategy, that involve "the superior ability of trained counsel" ( Jones v. Barnes, 463 U.S. at 751, 77 L. Ed. 2d at 993, 103 S. Ct. at 3313), include: whether to offer certain evidence or call particular witnesses ( People v. Barrow (1989), 133 Ill. 2d 226, 549 N.E.2d 240, 139 Ill. Dec. 728; People v. Smith (1993), 249 Ill. App. 3d 460, 619 N.E.2d 799, 189 Ill. Dec. 98; People v. Johnson (1991), 220 Ill. App. 3d 550, 581 N.E.2d 118, 163 Ill. Dec. 167); whether and how to conduct cross-examination; what jurors to accept or strike; what motions to make (People v. Ramey); whether to seek substitution or recusal of a Judge ( People v. Campbell (1984), 129 Ill. App. 3d 819, 473 N.E.2d 129, 84 Ill. Dec. 913; People v. Anderson (1981), 95 Ill. App. 3d 143, 419 N.E.2d 472, 50 Ill. Dec. 364); and what instructions to tender ( People v. Rachel (1984), 123 Ill. App. 3d 600, 462 N.E.2d 959, 78 Ill. Dec. 840; cf. People v. Brocksmith (1992), 237 Ill. App. 3d 818, 604 N.E.2d 1059, 178 Ill. Dec. 536, leave to appeal granted (1993), 149 Ill. 2d 653, 612 N.E.2d 516 (jury instruction combined with statute of limitation waiver).

Similarly, the decision of what defense theory to present at trial has been held to be a matter of trial strategy which is ultimately decided by trial counsel. In People v. Ramey (1992), 152 Ill. 2d 41, 604 N.E.2d 275, 178 Ill. Dec. 19, our supreme court upheld defense counsel's presentation of a self-defense theory, which was made against the defendant's wishes, and stated that the advocacy of such a theory was not a denial of due process. The court stated:

"Contrary to defendant's assertion, the defense theory to be presented to the trier of fact is not one of the matters which a defendant has the ultimate right to decide. Rather, it is a matter of trial tactics or strategy which is ultimately left for trial counsel.

The ABA Standards for Criminal Justice provide that three decisions are ultimately for the defendant in a criminal case after full consultation with his attorney: what plea to enter; whether to waive a jury trial; and whether to testify in his behalf. (ABA Standards for Criminal Justice 4-5.2 (Supp. 1986).) A defendant in a criminal case also has a fundamental right to decide whether to appeal. Citations.

Beyond these four decisions, however, trial counsel has the right to make the ultimate decision with respect to matters of tactics and strategy after consulting with his client. Such matters include what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike and what trial motions should be made. (ABA Standards for Criminal Justice 4-5.2 (Supp. 1986).) Such matters also include the defense to be presented at trial. (See, e.g., People v. Mikell (1991), 217 Ill. App. 3d 814, 821, 160 Ill. Dec. 729, 577 N.E.2d 1300; People v. Gallardo (1983), 112 Ill. App. 3d 764, 770, 68 Ill. Dec. 360, 445 N.E.2d 1213 (holding that decision to rely upon one theory of defense to exclusion of all others is generally a matter of trial tactics or strategy).) Consequently, we do not find that trial counsel's advocacy of the theory of self-defense denied defendant due process." (152 Ill. 2d at 53-54, 604 N.E.2d at 281.

Applying Ramey to the instant case, we hold that the Defendant was not denied due process when his trial counsel presented an insanity defense over Defendant's objection. It is clear, under People v. Ramey, that the decision to proceed with an unauthorized defense does not vitiate the trial unless, as will be discussed later in this opinion, counsel's defense choice otherwise amounts to ineffective assistance of counsel.

In Illinois, self-defense and insanity are affirmative defenses raised by the defense during trial by the presentation of some evidence in support thereof. (See Ill. Rev. Stat. 1977, ch. 38, par. 3-2 now codified at 720 ILCS 5/3-2 (West 1992).) Therefore, as in the case of the self-defense defense, the decision of whether to present an insanity defense must be perceived as a matter of trial strategy ultimately for trial counsel to decide even where such a decision contravenes the defendant's wishes.

The Defendant cites two California cases to support his argument that the insanity defense cannot be presented when it contravenes a defendant's wishes. Those cases, People v. Lomboy (1981), 116 Cal. App. 3d 67, 171 Cal. Rptr. 812, and In re Moye (1978), 22 Cal. 3d 457, 149 Cal. Rptr. 491, 584 P.2d 1097, are not influential for several reasons. First, the California statutory provisions for the insanity defense are dissimilar from those in Illinois. In California, insanity is a plea to an indictment or an information made when the defendant is arraigned. (Cal. Penal Code § 1016 (West 1985).) The California Penal Code specifically mandates that "every plea must be put in by the defendant himself in open court." (Emphasis added.)(Cal. Penal Code § 1018; cf. Cal. Penal Code § 1018 (West 1985)(language amended in 1976 to "every plea must be entered or withdrawn by the defendant himself in open court").) In Illinois, as stated above, insanity is not a plea but is an affirmative defense that is raised by the defendant during trial by the presentation of some evidence in support thereof. Ill. Rev. Stat. 1977, ch. 38, par. 3-2 now codified at 720 ILCS 5/3-2 (West 1992).

We also reject the California cases cited by Defendant because they do not involve a conflict between the Defendant and his counsel over the decision to raise insanity as a defense. Lomboy held that a defendant had to be rearraigned and had to personally re-plead the plea of not guilty by reason of insanity when an amended information was filed with reduced charges. In re Moye was cited in Lomboy for the proposition that, prior to entering a plea, a defendant must be advised of the pragmatic considerations as to length of confinement when pleading guilty by reason of insanity and when pleading guilty to the underlying offense. Cf. People v. Gauze (1975), 15 Cal. 3d 709, 125 Cal. Rptr. 773, 542 P.2d 1365 (neither counsel nor the court can compel a defendant to plead not guilty by reason of insanity).

While trial counsel's choice of the insanity defense was not a due process violation, we also must determine whether it deprived Defendant of his right to effective assistance of counsel. The test for ineffective assistance of counsel is not whether the adversarial process was undermined by defense counsel's chosen strategy but whether the process was so undermined by counsel's conduct such that the trial could not be relied upon as having produced a just, i.e., reliable result. (People v. Ramey; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246; see also Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Stated another way, the defendant must establish that there is a reasonable probability that, but for counsel's conduct, the result of the proceeding would have been different. (Strickland.) The defendant faces a high burden in meeting the Strickland test. People v. Johnson (1989), 128 Ill. 2d 253, 538 N.E.2d 1118, 131 Ill. Dec. 562; People v. Smith (1993), 249 Ill. App. 3d 460, 619 N.E.2d 799, 189 Ill. Dec. 98.

The Defendant in the case at bar contends that the result would have been different because defense counsel's use of the insanity defense diminished the effectiveness of Defendant's self-defense and accident theories. He argues that defense counsel's failure to refer to Defendant's chosen defenses in opening and closing remarks or to cross-examine any witnesses about those defenses effectively negated their credibility with the jury.

Applying the Strickland test to the instant case, we do not believe that the Defendant has met the burden of establishing that his counsel's conduct so undermined the adversarial process such that his trial did not produce a just or reliable result and that, but for this conduct, the trial result would have been different. The Defendant has not shown how defense counsel's failure to refer to Defendant's chosen defenses of self-defense and accident in closing argument or to cross-examine any of the witnesses to elicit testimony in support of these defenses prejudiced him. (See People v. Franklin (1990), 135 Ill. 2d 78, 552 N.E.2d 743, 142 Ill. Dec. 152 (defense counsel's closing argument is matter of trial strategy); People v. Smith (1993), 249 Ill. App. 3d 460, 619 N.E.2d 799, 189 Ill. Dec. 98 (no prejudice in failure to cross-examine State's witnesses).) He has not even alleged that any of the trial witnesses had information or would have given testimony to support these defenses. In fact, the testimony of all of the occurrence witnesses, with the exception of the Defendant, was contradictory to the Defendant's theories of self-defense and accident. Joann Colliflower, the only eyewitness to Williams' shooting, testified that Williams was sitting at his desk when he was shot by the Defendant.

With respect to the second shooting, Michael Dudley testified that he saw Sutton, the victim, standing on a concrete block in the back of the building; that the Defendant was holding a small revolver in his hand; and that the Defendant shot Sutton from a distance of approximately one or two feet. Again, there was not even a slight indication to support Defendant's testimony that Sutton pulled a gun on him or that a struggle ensued between the two men during which the gun discharged. Finally, the testimony of Ora Russell, defendant's roommate and cousin, did not buttress Defendant's defense theories. Russell testified that the Defendant took his gun from his apartment and stated that he was "going to kill them." Any attempt by defense counsel to cross-examine any of these witnesses concerning Defendant's claims of self-defense and accident, in all likelihood, would have been in vain and, in all likelihood, would have further diminished the plausibility of those theories.

We also disagree with Defendant's claim that he was prejudiced by defense counsel's presentation of the insanity defense because it diminished the effectiveness of his self-defense and accident theories. In support this argument, Defendant points to prosecutorial comment that the three defense theories were "totally inconsistent." While the State can argue inconsistency of defenses ( People v. Franklin (1990), 135 Ill. 2d 78, 552 N.E.2d 743, 142 Ill. Dec. 152), such an argument is rebuttable; and where the facts warrant, these defenses have been presented properly as alternative theories. (See, e.g., People v. Moore (1980), 89 Ill. App. 3d 202, 411 N.E.2d 579, 44 Ill. Dec. 457 (insanity, self-defense and accident); People v. Mahon (1979), 77 Ill. App. 3d 413, 395 N.E.2d 950, 32 Ill. Dec. 569 (self-defense and insanity); cf. People v. Aliwoli (1992), 238 Ill. App. 3d 602, 606 N.E.2d 347, 179 Ill. Dec. 515 (self-defense and insanity defenses contradictory where defendant testified that he was not insane at the time of the shooting).) The defenses admit the commission of the act but either provide justification or excuse. See People v. Allegri (1985), 109 Ill. 2d 309, 487 N.E.2d 606, 93 Ill. Dec. 781.

Additionally, as in the instant case, where a defendant's claims of self-defense and accident appear to be so implausible, they may actually provide support for an insanity defense. If a defendant's perception of the occurrence and his resulting actions are so incredulous, a jury could find that the defendant was not capable of appreciating the criminality of his conduct or conforming his conduct to the requirements of the law (Ill. Rev. Stat. 1977, ch. 38, par. 6-2(a) now codified at 720 ILCS 5/6-2(a) (West 1992)). Arguably, under ordinary circumstances, the failure to present an insanity defense in a case such as this could have resulted in a meritorious claim of ineffective assistance of counsel. See People v. Howard (1979), 74 Ill. App. 3d 138, 392 N.E.2d 775, 30 Ill. Dec. 120.

To summarize our holdings regarding Defendant's second argument, we find that the presentation of the insanity defense was a tactical decision properly made by trial counsel. Although Defendant objected to that defense, he was not denied due process or effective assistance of counsel when his attorney made the ultimate decision to proceed with that defense.

[The following material, sections III through IX, is nonpublishable under Supreme Court Rule 23.]

III.

The Defendant's third argument on appeal is that the prosecution was erroneously permitted to present a previously undisclosed admission of the Defendant. During direct examination, Officer Stella was permitted to testify that on September 2, 1978, he heard the Defendant tell Williams, "You can't fire me." During a sidebar, defense counsel objected to this testimony on the basis of relevancy and that it was too far removed from the murder date and because she was not aware that Defendant had made such a statement. The prosecutor indicated and the trial court agreed that Defendant's statement could be found in the supplemental detective's report or "clearing report." The prosecutor also stated that the officer's statement was being used, not for the truth of the matter asserted, but to show the Defendant's state of mind.

The Defendant claims that he was not provided with a copy of the statement made on September 2, 1978 in violation of Supreme Court Rule 412(a)(ii) (107 Ill. 2d R. 412(a)(ii). However, as the State argues in response, defense counsel did not raise this discovery rule violation at trial during the sidebar Discussion nor does the record filed by the Defendant contain any of the relevant documents in which discovery was requested or by which discovery was tendered. *fn4 The State contends that its answer to discovery and the officer's report were furnished to the Defendant. We must conclude, in the absence of proof to the contrary, that the State did comply with the Defendant's discovery request. People v. Blount (1991), 220 Ill. App. 3d 732, 580 N.E.2d 1381, 163 Ill. Dec. 40; People v. Donald (1977), 56 Ill. App. 3d 538, 371 N.E.2d 1101, 14 Ill. Dec. 48.

Even assuming a discovery rule violation, a new trial is not necessitated where the defendant has not shown prejudice. ( People v. Carr (1989), 188 Ill. App. 3d 458, 544 N.E.2d 978, 136 Ill. Dec. 203; see People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6, 29 Ill. Dec. 449.) Here any potential prejudice to the Defendant was effectively diluted since information regarding the Defendant's firing was presented by Ora Russell's testimony and by the Defendant's own admission that he had been fired.

IV.

Defendant's fourth argument on appeal is that he was denied his constitutional right of confrontation when he was precluded from impeaching Michael Dudley with prior convictions and when the court limited Defendant's cross-examination of James Tucker preventing Defendant from showing Tucker's motive to lie.

With respect to the Defendant's first contention, the Defendant states that, at his first two trials, he was allowed to impeach Dudley, but at the instant trial was not permitted to do so because the convictions had become over ten years old. Generally, evidence of a conviction is not admissible for impeachment purposes if more than ten years has elapsed since the date of conviction or the date of release from confinement, whichever date is later. ( People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.) However, if the conviction was less than ten years old at the initial trial and becomes greater than ten years old at the retrial, "fundamental fairness dictates that the defendant be allowed to impeach [the witness] in the same manner that the defendant [was] permitted to impeach him in the initial trial." People v. Reddick (1988), 123 Ill. 2d 184, 203, 526 N.E.2d 141, 149, 122 Ill. Dec. 1.

In the instant case it appears that the trial court, when ruling on the State's motion in limine that Dudley's prior convictions should be excluded, thought that Montgomery could require the exclusion. However, the trial court did not make such a ruling because it further stated that, if the Defendant was permitted to introduce Dudley's prior convictions that were more than ten years old, then the State also would be permitted to introduce the Defendant's prior convictions greater than ten years old. While defense counsel argued that the court's holding should not be applied to the Defendant's convictions, the trial court was correct in its determination that Montgomery and its progeny equally apply to the impeachment of witnesses and defendants. (See, e.g., People v. Bynum (1994), 257 Ill. App. 3d 502, 629 N.E.2d 724, 196 Ill. Dec. 179; People v. Grengler (1993), 247 Ill. App. 3d 1006, 617 N.E.2d 486, 187 Ill. Dec. 278.) The trial court and defense counsel also were correct in their statements that other factors, besides the time bar exception, could operate to prevent the admission of the Defendant's prior convictions to impeach his testimony but that that issue was not before the court at that time. Defense counsel could have chosen to impeach Dudley with the prior convictions that were greater than ten years and then brought a motion in limine at the time the Defendant took the stand to prevent his impeachment with his prior convictions by showing that the probative value of the convictions did not outweigh the danger of unfair prejudice to the Defendant. (See People v. Bynum.) Defense counsel instead declined to use Dudley's prior convictions that were greater than ten years old.

It also should be noted that defense counsel did impeach Dudley with a prior guilty plea on a theft charge that occurred within ten years of the instant trial and also was successful in demonstrating various inconsistencies between Dudley's testimony during the instant case and at Defendant's prior trial. We cannot say that the jury's verdict would have been influenced by the admission of Dudley's additional prior convictions as impeachment evidence. (See People v. Diaz (1981), 101 Ill. App. 3d 903, 428 N.E.2d 953, 57 Ill. Dec. 273.) Thus, the error, if any, is harmless.

We also reject Defendant's second contention that he was denied the right of confrontation when defense counsel was limited in her cross-examination of James Tucker and her attempt to show the reason he was no longer a taxicab driver. The State objected to this line of questioning; and during a sidebar, defense counsel argued that this information was relevant to show that the witness had been fired by the taxicab company; that the witness was biased toward law enforcement; and that the witness had attempted to make several citizen arrests. She further argued that an inference could be drawn that Tucker was hired by the police department because of his involvement in apprehending the Defendant. No offer of proof was made by defense counsel to support any of defense counsel's contentions. The trial court sustained the State's objection finding the testimony was irrelevant, collateral, inferential, and unsubstantiated.

The exposure of a witness's motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. ( People v. Perez (1991), 209 Ill. App. 3d 457, 568 N.E.2d 250, 154 Ill. Dec. 250.) Generally, a defendant is allowed wide latitude in conducting a cross-examination of a witness for the purpose of establishing bias, motive or interest, although the scope of cross-examination rests largely in the discretion of the trial court. (E.g., People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526, 57 Ill. Dec. 628; People v. Zarebski (1989), 186 Ill. App. 3d 285, 542 N.E.2d 445, 134 Ill. Dec. 266.) Furthermore, when impeaching, the evidence used must give rise to the inference that the witness has something to gain or lose by his testimony ( People v. Johnson (1986), 150 Ill. App. 3d 1075, 502 N.E.2d 304, 104 Ill. Dec. 41); and the evidence used must not be remote or uncertain. ( People v. Triplett (1985), 108 Ill. 2d 463, 485 N.E.2d 9, 92 Ill. Dec. 454.) Absent an offer of proof, we cannot say with any degree of certainty that the evidence that the Defendant attempted to elicit on cross-examination would have shown bias or that Tucker had something to gain or lose by testifying. The trial court did not abuse its discretion in limiting the scope of Tucker's cross-examination.

V.

Defendant next contends that he was denied due process when the trial court refused to hold a fitness hearing or to grant a continuance for further medical examination of the Defendant on the issue of his fitness to stand trial. The Defendant cites to three pages in the record wherein his competence was questioned or where he "acted irrationally in court." At one of the citations, defense counsel made the following statement:

"Although I have to always take what Mr. Anderson says with somewhat a grain of salt because it's still my impression as it is Dr. Schwartz', and again I'm raising this matter that Mr. Anderson's fitness is in question at this time to even stand trial."

A defendant is unfit to stand trial if, because of his mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense. (Ill. Rev. Stat. 1977, ch. 38, par. 104-10 now codified at 725 ILCS 5/104-10 (West 1992).) The issue of a defendant's fitness to stand trial may be raised by the defense, the State or the court; and when a bona fide doubt of the defendant's fitness is raised, the court shall order a determination of the issue before proceeding further. (Ill. Rev. Stat. 1977, ch. 38, par. 104-11(a) now codified at 725 ILCS 5/104-11(a) (West 1992).) Whether a bona fide doubt exists rests within the discretion of the trial Judge who is in the best position to observe the defendant and evaluate his conduct. People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677, 21 Ill. Dec. 350.

Documents in the record show that the Defendant was examined numerous times regarding his fitness to stand trial; and he was found to be fit by psychiatrists on January 12, 1988; January 25, 1988; and May 23, 1988. The Defendant also was found fit to stand trial by a jury on July 26, 1988. Defense counsel's remark, which occurred on February 20, 1989, appears to have been a casual remark, made in a different context, during a Discussion with the trial Judge regarding Defendant's attempts to locate certain witnesses and request for an additional continuance. Defense counsel did not make a motion requesting a fitness hearing.

Furthermore, we do not believe that the trial court committed error by failing to order a fitness hearing sua sponte. On the dates in question, the Defendant participated in Discussions with the trial Judge and testified. His testimony was responsive to the questions posed, and he appeared to understand the questions. (See People v. Murphy.) The trial Judge was in a superior position to observe the Defendant's behavior and ability to understand the proceedings and to cooperate with defense counsel. We cannot say that an abuse of discretion occurred when the court failed to order a fitness hearing.

VI.

The Defendant's sixth argument on appeal is that he was denied due process when the trial court prevented him from presenting relevant testimony. Specifically, the Defendant contends that error occurred when the court: (1) excluded testimony by Ora Russell concerning Defendant's mental state; (2) excluded testimony by Woodward Jordan concerning William's mismanagement of the building at 300 West North Avenue; (3) refused to allow Defendant to testify on surrebuttal about the circumstances under which he came into custody while on bond prior to his first trial; (4) refused to grant Defendant a continuance to allow him to locate additional witnesses; and (5) denied Defendant's motion to read to the jury the testimony of Juanita Point from the transcripts of Defendant's two prior trials.

With respect to Defendant's first three contentions of error, we find that they concern evidentiary rulings that are within the discretion of the trial Judge. The trial court is given broad discretion in ruling on issues of relevancy and materiality with respect to testimonial evidence, and its decision will not be reversed absent an abuse of discretion. (See, e.g., People v. Williams (1990), 196 Ill. App. 3d 851, 554 N.E.2d 1040, 144 Ill. Dec. 1; People v. Andersen (1985), 134 Ill. App. 3d 80, 479 N.E.2d 1164, 89 Ill. Dec. 158.) We do not believe that any of these rulings were an abuse of discretion. We also agree with the State's argument that much of the evidence that the Defendant contends he was prevented from introducing was in fact presented by these or other witnesses.

We also reject Defendant's fourth contention that he was denied a continuance to locate additional defense witnesses. The decision to grant or deny a continuance to procure a witness is within the discretion of the trial court. ( People v. Bryant (1983), 115 Ill. App. 3d 215, 450 N.E.2d 744, 71 Ill. Dec. 56.) In considering a trial court's denial of a continuance to secure the presence of a witness, a reviewing court must determine the defendant's diligence, the materiality of the evidence such that the lack thereof might affect the outcome of the trial, and the actual prejudice to defendant. ( People v. Camp (1990), 201 Ill. App. 3d 330, 559 N.E.2d 26, 147 Ill. Dec. 26.) The absence of a witness whose testimony would corroborate only collateral aspects of defendant's testimony is not sufficient justification for a continuance. People v. Bryant.

In the case at bar, the Defendant has not demonstrated diligence. The instant trial, which was the Defendant's third, began in January of 1987. Various psychiatric examinations were ordered, and a fitness hearing was concluded on July 26, 1988. Upon the completion of discovery and after various continuances, a jury was selected and the trial commenced on February 15, 1989. On February 17, 1989, the Defendant requested a continuance to procure witnesses. The trial court granted him the weekend to procure the witnesses. On February 20, 1989, the Defendant renewed his motion; and the court denied the motion finding it to be a delaying tactic.

In addition to failing to show diligence, the Defendant also has not shown the materiality of the evidence sought or the prejudice that resulted. During the Discussion on Defendant's request for a continuance on February 17, 1989, defense counsel agreed that the witnesses sought by the Defendant would not support his defenses of self-defense or insanity. She further advised the Judge that the information that would result from their testimony had already been testified to. She indicated that the Defendant refused the State's offer to stipulate to the fact that the witnesses, if they were procured, would testify that the Defendant talked to them on the telephone before the shooting. Based on the above, we believe the testimonial evidence the Defendant sought to produce was not material and would merely corroborate collateral aspects of the defense. Accordingly, we find Defendant's motion for a continuance was properly denied.

Defendant's final evidentiary error concerns the denial of Defendant's motion to read the testimony of Juanita Point, given at Defendant's prior two trials, to the jury in the instant trial because Point was unavailable. Prior testimony of a witness is admissible in evidence at trial upon a showing of a witness' unavailability if the witness was subject to competent cross-examination at the prior proceeding. (See People v. McCambry (1991), 218 Ill. App. 3d 996, 578 N.E.2d 1224, 161 Ill. Dec. 578; People v. Knippenberg (1979), 70 Ill. App. 3d 496, 388 N.E.2d 806, 26 Ill. Dec. 805.) The burden is on the party seeking to introduce the prior testimony to show good faith and due diligence in seeking to procure the witness. See People v. Rogers (1979), 79 Ill. App. 3d 745, 398 N.E.2d 1058, 35 Ill. Dec. 108 (use of preliminary hearing testimony at trial).

Federal Rule of Evidence 804, which has been relied upon by Illinois courts in determining unavailability for purposes of using prior testimony as an exception to the hearsay rule (see People v. Johnson (1987), 118 Ill. 2d 501, 517 N.E.2d 1070, 115 Ill. Dec. 384), provides that unavailability as a witness includes situations in which the declarant:

"(2) persists in refusing to testify concerning the subject matter of [his] statement despite an order of court to do so; or

(3) testifies to a lack of memory of the subject matter of [his] statement; or

(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) is absent from the hearing and the proponent of his statement has been unable to procure his attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), his attendance or testimony) by process or other reasonable means." Fed. R. Evid. 804(a).

As stated in People v. Johnson, "the reasons for unavailability which are acceptable under Federal Rule 804 -- privilege, persistent contemptuous refusal to testify, failure of memory, death or illness, etc. -- are substantial and therefore legally cognizable." (118 Ill. 2d at 509, 517 N.E.2d at 1074.) Johnson further stated that a "mere unwillingness" of an otherwise available witness to testify does not rise to the level of unavailability required by Federal Rule 804. *fn5 Furthermore, as stated in People v. Ramey (1992), 152 Ill. 2d 41, 604 N.E.2d 275, 178 Ill. Dec. 19, a witness' refusal to testify "requires a positive statement indicating an explicit refusal to testify, an explicit order by the court * * * and persistence in that refusal." 152 Ill. 2d at 72, 604 N.E.2d at 290.

In the instant case, the reason given by the Defendant and defense counsel for Point's unavailability was that she was an older woman, semi-infirm, and that her family did not wish her to come to court to testify. The trial court ruled this was an insufficient showing of unavailability and that the Defendant had been given adequate time to procure witnesses, including the many months before the parties answered ready for trial. We do not believe that the trial court abused its discretion in ruling that the Defendant had not sufficiently established proof of unavailability. (See R. Hunter, Trial Handbook for Illinois Lawyers § 53.5, at 690 (6th ed. 1989.) The Defendant had not shown a contemptuous refusal to testify (People v. Ramey) or an attempt on the part of the Defendant to subpoena Ms. Point. He also had not alleged or proved a specific illness that would have physically or mentally prevented Ms. Point from appearing in court to testify. See Fed. R. Evid. 804(a)(4).

VII.

Defendant next argues that he was denied an impartial jury because the prosecution exercised its peremptory challenges to exclude black jurors solely on the basis of race and to exclude black female jurors solely on the basis of race and sex. He further contends that the trial court erred when it denied Defendant's motion for mistrial finding that the prosecution presented racially-neutral explanations for its use of peremptory challenges.

The Defendant's argument in support of this contention is minimal and lacks the proper case citation including omission of a citation to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, the leading authority. In accordance with Batson, a defendant must first establish a prima facie case of purposeful discrimination by showing facts or circumstances that raise an inference that the prosecutor used his peremptory challenges to remove members of a cognizable racial group from the venire and that defendant was a member of that group. The State then must come forward with a racial-neutral explanation for challenging such jurors. (E.g., People v. McDonald (1988), 125 Ill. 2d 182, 530 N.E.2d 1351, 125 Ill. Dec. 781.) The reasons need not rise to the level that justify a challenge for cause ( People v. Mack (1989), 128 Ill. 2d 231, 538 N.E.2d 1107, 131 Ill. Dec. 551) but must demonstrate a neutral explanation that relates to the particular case being tried. ( People v. Fryer (1993), 247 Ill. App. 3d 1051, 618 N.E.2d 377, 187 Ill. Dec. 786.) The trial court's finding regarding purposeful discrimination is a finding of fact and will not be overturned on review unless it is found to be against the manifest weight of the evidence. U.S. v. Batson; People v. McDonald.

In the case at bar, the Defendant challenges the State's use of four peremptory challenges to exclude four venire members, three black females and one black male. While we question the sufficiency of the record, in that there is no indication of the race of each venire member or of the seated jurors (see People v. Rosa (1990), 206 Ill. App. 3d 1074, 565 N.E.2d 221, 151 Ill. Dec. 950; People v. Johnson (1986), 150 Ill. App. 3d 1075, 502 N.E.2d 304, 104 Ill. Dec. 41), we note that the record does contain a Discussion of the State's reasons for the exclusion of the four venire members referred to by the Defendant in the instant appeal. Before the entire jury was impaneled, but after the State had exercised six peremptory challenges, excluding the four black venire members, defense counsel objected on the basis of Batson. At that point, and while four black persons tentatively had been accepted as jurors, the trial Judge required that the State give a race-neutral explanation for its exclusion of the four black venire members. The State did so, and the Judge found that there was no purposeful exclusion in violation of Batson.

We have reviewed the relevant portions of the record and we agree that race-neutral explanations were given by the State. One of the excluded venirepersons had difficulty understanding the insanity defense; a second was excluded because she believed the insanity defense was used unnecessarily and because her nephew's murderer was found not guilty by reason of insanity; a third was excluded because of potential prejudice against the State since she did not feel that her brother's murder had been adequately investigated; and the fourth was excluded because of a preconceived preference for a verdict of not guilty by reason of insanity. We do not find that the trial court's finding of no purposeful discrimination is against the manifest weight of the evidence.

We also reject the Defendant's contention that venire members were improperly excluded from the jury on the basis of sex. Until recently, Illinois courts have held that male defendants lacked standing to challenge the exclusion of women from petit juries on the basis of Batson (see, e.g., People v. Crowder (1987), 161 Ill. App. 3d 1009, 515 N.E.2d 783, 113 Ill. Dec. 798) or in reliance on the sixth amendment's fair cross-section requirement (U.S. Const., amend. VI; Holland v. Illinois (1990), 493 U.S. 474, 107 L. Ed. 2d 905, 110 S. Ct. 803; People v. Crowder). However, the United States Supreme Court recently extended Batson to prohibit gender discrimination in the selection of petit juries. ( J.E.B. v. Alabama ex rel. T.B. (1994), U.S. , 128 L. Ed. 2d 89, 114 S. Ct. 1419.) Now,"as with race-based Batson claims, a party alleging gender discrimination must make a prima facie showing of intentional discrimination before the party exercising the challenge is required to explain the basis for the strike." U.S. at , L. Ed. 2d at , 114 S. Ct. at 1429.

The Defendant contends that the State improperly used its peremptory challenges to exclude all "black female jurors." Defendant does not explain his argument nor does he support his argument by citation to the record. It appears that the Defendant is objecting to the exclusion of the three black females who were the subject of the State's peremptory challenges discussed above in the context of the race-neutral Batson test. Although the trial court did not require the State to give gender-neutral explanations for its exclusion of these venire members, the State's explanations, stated above, also show a lack of gender discrimination in the State's use of its peremptory challenges.

VIII.

The Defendant further argues that he was denied due process when improper and prejudicial prosecutorial acts occurred at trial. Defendant refers to the presence in the courtroom of the State's life-and-death witnesses, who were family members of the victims, and the denial of defense counsel's motion for mistrial because one of those witnesses sobbed loudly during closing argument.

In response, the State argues that the witnesses were permitted to remain in the courtroom to observe the trial. The record shows that the State requested, early in the trial, at the Conclusion of the life-and-death witnesses' testimony, that those witnesses be permitted to be present during the remainder of the trial. Defense counsel raised the possibility of outbursts that could inflame the jury and asked that the witnesses be instructed to sit on the other side of the courtroom away from the jury. The trial court agreed. We find no error in this regard.

Additionally, a genuine emotional outburst by a witness who is testifying before the jury does not require a mistrial. ( People v. Hudson (1970), 46 Ill. 2d 177, 263 N.E.2d 473; People v. Sambo (1990), 197 Ill. App. 3d 574, 554 N.E.2d 1080, 144 Ill. Dec. 41.) The decision to order a mistrial in such a situation is within the trial court's discretion since the trial Judge is in a superior position to determine the impact that the witness' crying may have had on the jury. People v. Sambo.

In the instant case, the Defendant does not allege that the witness cried while testifying on the stand in plain view of the jury. Rather, the Defendant contends that the witness was crying while sitting in the courtroom as a spectator. As stated above, the prosecutor was instructed by the trial Judge to advise the life-and-death witnesses to sit on the other side of the courtroom away from the jury. We must assume that the witness was sitting in the appropriate section of the courtroom where the jury's observance of the witness was questionable. Furthermore, the trial Judge was in the superior position to determine the impact on the jury, if any, of the witness' sobbing. We find no obvious prejudice to the Defendant; and the trial court did not abuse its discretion in refusing Defendant's request for mistrial.

Defendant contends that a second improper and prejudicial prosecutorial act occurred when the State's file, marked "Double Murder," printed in letters that were six to eight inches high, was placed in plain view of the jury. *fn6 We find Defendant's argument baseless. As the record shows, defense counsel raised this "very slight procedural matter" early in the trial. She indicated that she noticed the file earlier and that it was no longer in view. The prosecutor stated that the file in question was in a cart facing the bench, perpendicular to the jury; that he did not know whether the jury could see it; and that the action was unintentional. The trial court agreed that the action was unintentional and directed the State to make sure it was not viewed by the jury in the future. We cannot say that the Defendant was prejudiced by this occurrence. See People v. Leaks (1989), 179 Ill. App. 3d 231, 534 N.E.2d 491, 128 Ill. Dec. 309 (no denial of fair trial where one juror saw the word "robbery" on a file concerning a previous case in which defendant had been charged with armed robbery).

IX.

Defendant's final argument on appeal is that his defense counsel was prevented improperly from disclosing to the jury during closing argument the consequences of a finding of not guilty by reason of insanity.

Prior to closing argument, the State presented a motion in limine seeking to bar the defense from commenting on the effect of a finding of not guilty by reason of insanity. The trial court agreed that it would be improper argument in light of its previous ruling denying a jury instruction on that subject.

As stated in part I of this opinion, the jury should not be instructed as to the possible consequences of a verdict of not guilty by reason of insanity. For the same reasons, defense counsel should not be permitted to inform the jury of those same consequences by way of closing argument. Thus, there was no error in prohibiting such commentary.

[The preceding material, sections III through IX, is non-publishable under Supreme Court Rule 23.]

For the foregoing reasons, and for the reasons contained in the nonpublishable portions of this opinion, pursuant to Supreme Court Rule 23 (Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23, effective July 1, 1994), the judgment of the circuit court is affirmed.

McNULTY and COUSINS, Jr., JJ., concur.


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